Mcle Article: What it Takes to Be a Putative Spouse in California and Its Benefits: Part Ii -voidable Marriages

• Publication year: 2017
• Author: Judge Mark Juhas

MCLE Article: What it Takes To Be A Putative Spouse in California and Its Benefits: Part II -Voidable Marriages

Judge Mark Juhas

Los Angeles County Superior Court Judge Mark A. Juhas has presided in family court since he was appointed to the bench in 2002. He also chairs the California Commission on Access to Justice and teaches extensively in the areas of family law, self-represented litigants and access to justice.

Check the end of this article for information on how to access 1 hour of Legal Specialization in Family Law and 1 hour of general self-study credits.

n Part One of this article, I discussed the concept of void marriages. A void marriage is just that; void from the inception, allowing for no legal rights for either party¹ Under the law, void marriages are limited to bigamy and incest. In this installment, I will explore "voidable" marriages. Those are marriages that suffer from a defect at the start but can be "fixed" with the passage of time or the occurrence of other factors. Just like void marriages, even if a voidable marriage is ultimately determined to be void, the parties may be putative spouses that might give one or both of them the property and support protections found in the Family Code.

The general statutory scheme for voidable marriages in California is found at Family Code sections 2210 and 2211.² Section 2210 provides the six exclusive grounds for annulment and 2211 provides the limitations on when an action for nullity can be brought and who has standing to bring the action³

Family Code section 2210 reads:

A marriage is voidable and may be adjudged a nullity if any of the following conditions existed at the time of the marriage:
(a) The party who commences the proceeding or on whose behalf the proceeding is commenced was without the capability of consenting to the marriage as provided in Section 301 or 302, unless, after attaining the age of consent, the party for any time freely cohabited with the other as his or her spouse.
(b) The spouse of either party was living and the marriage with that spouse was then in force and that spouse (1) was absent and not known to the party commencing the proceeding to be living for a period of five successive years immediately preceding the subsequent marriage for which the judgment of nullity is sought or (2) was generally reputed or believed by the party commencing the proceeding to be dead at the time the subsequent marriage was contracted.
(c) Either party was of unsound mind, unless the party of unsound mind, after coming to reason, freely cohabited with the other as his or her spouse.
(d) The consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as his or her spouse.
(e) The consent of either party was obtained by force, unless the party whose consent was obtained by force afterwards freely cohabited with the other as his or her spouse.
(f) Either party was, at the time of marriage, physically incapable of entering into the marriage state, and that incapacity continues, and appears to be incurable.

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Family Code section 2211 reads:

A proceeding to obtain a judgment of nullity of marriage, for causes set forth in Section 2210, must be commenced within the periods and by the parties, as follows:
(a) For causes mentioned in subdivision (a) of Section 2210, by any of the following:

(1) The party to the marriage who was married under the age of legal consent, within four years after arriving at the age of consent.
(2) A parent, guardian, conservator, or other person having charge of the minor, at any time before the married minor has arrived at the age of legal consent.

(b) For causes mentioned in subdivision (b) of Section 2210, by either of the following:

(1) Either party during the life of the other.
(2) The former spouse.

(c) For causes mentioned in subdivision (c) of Section 2210, by the party injured, or by a relative or conservator of the party of unsound mind, at any time before the death of either party.
(d) For causes mentioned in subdivision (d) of Section 2210, by the party whose consent was obtained by fraud, within four years after the discovery of the facts constituting the fraud.
(e) For causes mentioned in subdivision (e) of Section 2210, by the party whose consent was obtained by force, within four years after the marriage.
(f) For causes mentioned in subdivision (f) of Section 2210, by the injured party, within four years after the marriage.

Except for marriages that fall under section 2210(b), a voidable marriage becomes valid if the aggrieved party "freely cohabits" with the other spouse. The question that cuts across these code sections is, how long can a party wait before they are barred from filing a petition for nullity? The statute does not put a time limit on this "cohabitation," and existing case law is not terribly clear, except that it rests great discretion in the trial court. In one matter, the petitioner was denied an annulment because he discovered the fraud after six weeks of marriage but continued to live with the respondent for four and one-half months thereafter⁴ In another, an annulment was granted after six years of marriage where the parties resided in separate homes, but "shared the same quarters on their brief vacations away from the area.⁵"

The case law addresses this question by stating that "since the statute places no limitation on the time the free cohabitation must endure, the matter rests within the sound discretion of the trial court, as does the question of when the plaintiff has 'full knowledge.'"⁶Clearly, as with most of family law, the individual facts of the mater and how they are presented will direct the case's outcome.

There is some murkiness in the law on the question of whether a nullity action on a voidable marriage survives the death of a party⁷ In Greene vs. Williams, 9 Cal. App. 3d 559 (1970), husband was underage when he married wife without parental or court permission. Three months after the marriage, he was killed in combat. The court disallowed the nullity, reasoning that a parent's right is derivative. Because the son failed bring an action, his mother could not. In contrast, in In re Marriage of Goldberg, 22 Cal. App. 4th 265 (1994), the Fourth District allowed a nullity action to proceed when the decedent himself filed it before his death. These cases can only be harmonized by focusing on who filed the action before the death of one of the "spouses"⁸ Importantly, the right for annulment of a marriage is statutory in nature and thus controlled by the Legislature; "it is for the Legislature to prescribe when and by whom such litigation may be commenced⁹

Unlike a void marriage that is subject to collateral attack by a third party, a voidable marriage can only be challenged pursuant to these code sections¹⁰ To form the basis of a nullity action, the various infirmities to the marriage must exist at the time the marriage was entered into. The vast majority of the grounds for nullity of a voidable marriage...